RSA Conference Exhibitor List 2024 - Exhibitors Data
Crews on Copyright: E-Reserves and Fair Use
1. E-Reserves and Fair Use:
Copyright, Georgia State, and Your Library’s
Policy
Presented by:
ALA Editions Workshop
September 5, 2012
Kenneth D. Crews
Director, Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu
2. Why Fair Use?
• Teaching
• Research
• Library Services
• Website Development
• Publishing
3. Fair Use in Transition
• New court rulings
• New interpretations
4. What is Fair Use?
Exception to Rights of Owners
Public Use of Copyrighted Works
Defense to Infringement Claims
Fair Use is Also:
◦ Flexible
◦ Adaptable
◦ Fundamental to the Growth of Knowledge
5. What is Fair Use?
Section 107 of the Copyright
Act
Based on Four Factors:
◦ Purpose of the Use
◦ Nature of the Work Used
◦ Amount and Substantiality of the
Portion
◦ Effect on the Market for the Work
6. Fair Use and Classroom
Copies
In the Statute: “including multiple
copies for classroom use”
Still subject to the Four Factors
Closest Cases:
◦ Basic Books v. Kinko’s Graphics
Corp. (1991)
◦ Princeton University Press v.
Michigan Document Services (1996)
7. Fair Use and Classroom
Copies
Classroom Guidelines (1976)
◦ Negotiated among Interested Parties
◦ Narrow Word-Count Limits
◦ No Anthologies
◦ No Repeat Use
ALA Model Policy (1982)
Proposed CONFU Guidelines (1996)
8. The Rise of Litigation
Copyright Cases Pending Today:
◦ UCLA (video streaming)
◦ Univ. of Michigan (HathiTrust)
◦ Google Books Litigation/Settlement
◦ Kirtsaeng v. John Wiley & Sons
◦ Threats regarding International
Interlibrary Loans
9. The Rise of Litigation
E-Reserves Threats and
Resolutions
◦ Resolutions at:
Cornell, Hofstra, Syracuse,
Marquette
◦ Universities Adopted New
Policies
◦ Preserve Some Flexibility
10. Georgia State University
Settlement was not Forthcoming
History of Policy Challenges
◦ Ongoing concerns about 1997 Policy
Lawsuit filed in March 2008
◦ Named Plaintiffs: Major Publishers
◦ Named Defendants: Individual Trustees,
Officials, Employees
GSU Revised its Policy in 2009
11. The Georgia State Lawsuit
Copyright Infringement
◦ Contributory Infringement
Fair Use Defense
Sovereign Immunity for State
Agencies
Limited to Alleged Infringements under
Revised 2009 GSU Policy
Trial held in May and June 2011
12. The Court’s Ruling
Issued in May 2012
Extends to 350 pages
At the Core: Analysis of Fair Use
Applied Findings:
◦ 75 instances of claimed infringement
◦ Only 5 instances of infringement
13. Final Order (August 2012)
Offered a Few Clarifications
Ordered GSU to revise its policy in a
manner “not inconsistent with” the
ruling
Ordered Plaintiffs to pay Defendants’
Attorney Fees
◦ The Copyright Act: “the court may also
award a reasonable attorney’s fee to the
prevailing party….”
14. Pausing for a Moment….
Coming up Next:
◦ The Ruling and the Four Factors
Open Time for Questions!
15. The Factors of Fair Use
Purpose, Nature, Amount,
Effect
Purpose of the Use
◦ Educational uses
◦ Nonprofit education
◦ Transformative use not essential
◦ Result: “Strongly Favors” fair
use
16. The Factors of Fair Use
Nature of the Work
◦ Non-fiction works
◦ “Informational and educational in
nature”
Other Types of Works?
◦ Textbooks?
◦ Journal Articles?
◦ Audiovisual, Art, Photography, Music,
17. The Factors of Fair Use
Amount and Substantiality of the
Portion
◦ Reasonable in light of purpose
◦ Not market substitution
◦ Classroom Guidelines are too
restrictive
◦ “Plaintiffs do not explain their
decision to seek acceptance of the
minimum standards as the maximum
18. The Factors of Fair Use
Amount and Substantiality of the
Portion
“Congress intended that use of a
smaller portion would be more apt to
be acceptable than use of a larger
portion. Taking into account the fact
that this case involves only mirror-
image, nontransformative uses, the
amount used must be decidedly small
to qualify as fair use.”
19. The Factors of Fair Use
Amount and Substantiality of the
Portion
The court noted the importance of
selecting whole chapters, rather than
“truncated paragraphs,” to serve an
educational purpose. “However, the
selected excerpt must fill a
demonstrated, legitimate purpose in
the course curriculum and must be
narrowly tailored to accomplish that
purpose.”
20. The Factors of Fair Use
Effect on the Market
“In general, the larger the excerpt, the
greater the potential harm; a large
excerpt comes closer to substituting
for the whole book.” The court found
the excerpts to be “generally a small
part,” around 10%, of each book, and
such excerpts do not substitute for the
book.
21. The Factors of Fair Use
Effect on the Market
Loss of licensing revenue is also
relevant. “For loss of potential license
revenue to cut against fair use, the
evidence must show that licenses for
excerpts of the works at issue are
easily accessible, reasonably priced,
and that they offer excerpts in a format
which is reasonably convenient for
users.”
22. The Factors of Fair Use
Effect on the Market
The court found “no persuasive
evidence” that the ability to publish
scholarly books “would be appreciably
diminished by the modest relief from
academic permissions payments
which is at issue in this case.”
23. The Factors of Fair Use
Effect on the Market
This factor weighs heavily against fair
use “where permissions are readily
available from CCC or the publisher
for a copy of a small excerpt of a
copyrighted book, at a reasonable
price, and in a convenient format…,
and permissions are not paid….”
24. The Factors of Fair Use
Consider Together Amount and
Effect:
Books with fewer than 10 chapters:
◦ May copy up to 10% of the pages
Books with 10 or more chapters:
◦ May copy up to 1 chapter.
Such excerpts are “decidedly small.”
25. The 10% Solution?
Consider Together Amount and
Effect:
Such excerpts are “decidedly small.”
Keep in mind the facts of the case:
◦ Non-fiction books
◦ Many were not licensable
The court did NOT set a Cap on
Copying
Four Factors are the Law
26. Policy Implementation
“Carefully monitored circumstances”
Passcode for student access.
Access terminates at end of semester.
Students must be reminded of the
limits of copyright.
Students must be “prohibited by
policy” from distributing the works to
others.
27. The Fair Use Policy
Written Policy
◦ Based on the Four Factors
Faculty Assess with a Fair Use
Checklist
◦ However, the Ruling Outlined Additional
Requirements
Librarians Flag Questionable
Requests
Current Policy:
28. Your Policy Options Today
Option 1: Wait for Appeal
Option 2: Revise only for E-
Reserves
◦ Nonfiction Books?
◦ Journal Articles?
◦ Textbooks?
◦ Music and Audiovisual?
◦ Art and Photographs?
29. Your Policy Options Today
Option 3: Revise for All Fair Use
◦ Build on the Four Factors
◦ Determine Implementation
Procedures
◦ Start Information & Education
Programs
In Any Event:
◦ Have a Written Policy
◦ Consult with Counsel or Legal
30. Moving Forward
Importance of Fair Use
Need to Preserve all Options
Fair Use Checklist or other Tool
Library & Teaching Exceptions
Open Access & Creative Commons
Need to Respect Rights of Owners
Need to Manage Our Own Copyrights
31. Thank You!
Kenneth D. Crews
Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu
www.twitter.com/kcrews
Next Workshop:
Wednesday, October 24
“Open Access and Your
Publications”